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New Report Finds Due Process Abuses in Secretive Deportation Program

Stanford Law School, the National Immigration Law Center, and Western State University College of Law

“Deportation Without Due Process” Shines Light on Government “Stipulated Order of Removal” Program, Finds Evidence of Misuse

FULLERTON, Calif., September 08, 2011—Using a little-known government program, the United States Department of Homeland Security (DHS) has pushed nearly 160,000 immigrants – many with deep ties to the United States – through an expedited deportation process, sometimes without adequately informing them of their right to a day in court, according to a new analysis of thousands of pages of released government documents. The report, written by attorneys and law professors at Stanford Law School, the National Immigration Law Center, and Western State University College of Law, determined that DHS agents administering the program provided legally inaccurate portrayals of the opportunities to remain in the United States in order to boost deportation numbers, even though judges and others involved in the program voiced their concerns about how the program short-circuited individuals’ rights.

Authors procured the previously unreleased documents, which included e-mails, memos, and data, through a Freedom of Information Act (FOIA) lawsuit. According to the report, the documents revealed evidence that agents involved with the program routinely provided inaccurate and misleading information to detainees in deportation proceedings to coerce them into signing “stipulated orders of removal,” which waives a non-citizen’s right to a day in court in exchange for speedy deportation. At least one immigration judge involved in the program determined that, “the waiver is not knowing in almost all cases.”

“The stipulated removal program has hit some of the most powerless members of our society the hardest: poor immigrants who are in immigration detention, who don’t have lawyers, and who are facing minor, civil immigration charges. Some of these noncitizens might actually have qualified to apply for lawful immigration status,” said Jennifer Lee Koh, lead author of the report and assistant professor of law at Western State University College of Law. “Unfortunately, the documents reveal a government agency that is willing to cut corners around immigrants’ Constitutional due process rights in the name of boosting deportation numbers.”

Among the most troubling documents obtained through the lawsuit is a Spanish-language script, apparently used by agents administrating the program, to convince immigrants to sign the Stipulated Order of Removal. The script, which is replete with grammatical errors and legal inaccuracies, erroneously informs immigrants that the “only” way to “fix” their papers is through certain family relationships and openly discourages immigrants from taking their cases to court.

“This report confirms what attorneys working in detention centers have heard for years: non-citizens, especially those with limited English skills, are pressured into signing documents without being informed of the severe consequences of their actions,” said Karen Tumlin, managing attorney at the National Immigration Law Center and co-author of the report. “Such activity flies in the face of our constitutionally-protected due process rights. Sadly, the DHS seems to have determined that flagrant disregard for the Constitution is a fair price to pay for the expedient expulsion of thousands of members of our communities.”

The report shows that the program, which began nearly a decade ago and dramatically expanded in 2003, has been encouraged by DHS Immigration and Customs Enforcement (ICE) officers at various levels of the organization. According to documents reviewed by the authors of the report, field offices were encouraged to use the program to boost deportation numbers and given incentives to increase the number of Stipulated Orders of Removals signed by detainees in their jurisdictions.

“The stipulated removal program is a misguided solution to the U.S. government’s practice of over-detaining immigrants,” said Jayashri Srikantiah, professor of law and director of the Immigrants’ Rights Clinic at Stanford Law School and co-author of the report. “The Obama administration should reconsider its detention practices instead of pressuring detainees to sign their own deportation orders. Due process requires more than a coerced choice between continued detention and giving up one’s day in court.”

The documents released show evidence that the noncitizens ensnared by the program were not given accurate information about their rights or current immigration law, and the documents reviewed suggest there are no policies preventing administrators from offering stipulated orders of removal to juveniles, the mentally ill, or other vulnerable populations. In 96% of all cases under the program analyzed by the authors of the report, immigrants did not have access to a lawyer, who could have provided immigrants with an accurate description of the often permanent ramifications of signing a Stipulated Order of Removal. Authors propose a variety of policy recommendations to prevent future misuse of the program, including mandating that those who sign Stipulated Orders of Removal hold brief meetings with judges to discuss the consequences of participation in this program, and expanding access to legal information and attorneys.

The FOIA lawsuit was filed by Stanford Immigrants’ Rights Clinic and the National Immigration Law Center on behalf of the National Immigration Law Center, the ACLU of Southern California, and the National Lawyers Guild-San Francisco Bay Area Chapter. The documents procured are available at http://blogs.law.stanford.edu/stipulatedremoval/.

The Immigrants' Rights Clinic (IRC) at Stanford Law School is committed to protecting the human rights of all non-citizens regardless of immigration status. Clinic Director Jayashri Srikantiah and Anna R. Welch, the clinic’s Cooley Godward Kronish Fellow, supervise students on direct services and legal advocacy projects. Students in the clinic represent individual immigrants in a variety of settings and since the clinic’s inception, students have sought humanitarian relief from deportation on behalf of non-citizens with criminal convictions and assisted immigrant survivors of domestic violence in gaining lawful status in the United States. The clinic has also conducted legal advocacy on behalf of institutional clients in a wide range of areas, including challenging prolonged immigration detention, protecting the due process rights of immigrants in deportation proceedings, and broadening the access of immigrant survivors to much-needed legal services. The clinic’s webpage is at: www.law.stanford.edu/clinics/irc.

Founded in 1979, the National Immigration Law Center envisions a society in which all people – regardless of race, gender, income level, or immigration status – have the opportunity to live freely, work safely, and thrive peacefully. The organization’s advocates and attorneys use a variety of tools, including policy analysis, litigation, education and advocacy, to achieve this vision.

Western State University College of Law (www.wsulaw.edu) was founded in 1966 and is the oldest law school in Orange County with more than 11,000 alumni. Located in the heart of Southern California, Western State University offers both full- and part-time programs, taught by a dedicated and highly motivated faculty who serve as scholars and mentors both inside and outside of the classroom. The Western State University College of Law Immigration Clinic, provides practical training to law students, serves low-income noncitizens in a range of immigration matters, and provides advocacy on immigrants' rights issues.